Opinion
Appeal No. 3-13-0392
07-17-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GENA MAKOWSKI, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois,
Circuit No. 11-CM-2387
Honorable Carmen Goodman, Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Justices Carter and Holdridge concurred in the judgment.
ORDER
¶ 1 Held: Defendant was not denied her constitutional right to a speedy trial.
¶ 2 Defendant, Gena Makowski, was convicted of theft (720 ILCS 5/16-1(a)(1)(A) (West 2010)) and sentenced to 12 months' court supervision. On appeal, defendant argues that she was denied her constitutional right to a speedy trial. We affirm.
¶ 3 FACTS
¶ 4 On July 21, 2011, defendant was charged by information with theft. The information alleged that between June 3 and June 25, 2011, defendant knowingly obtained unauthorized control over property of the victim, a gift card, with the intent to permanently deprive the victim of the use and benefit of the property.
¶ 5 On the same date, the court issued a summons that ordered defendant to appear on September 1, 2011. Defendant's address was listed on the summons as 8235 Woodland Drive, Apartment B, Darien, Illinois. Defendant failed to appear on the scheduled date, and the court issued an arrest warrant. Defendant's address on the warrant was the same as it was on the summons. The court also sent defendant a notice of the October 13, 2011, hearing. The notice listed the same address as the summons.
¶ 6 On October 13, 2011, defendant failed to appear, and the State motioned the court to quash the warrant because it did not have a returned summons. The court quashed the warrant. On November 4, 2011, the warrant was reissued and listed defendant's last known address as 8235 Woodland Drive, Apartment B, Darien, Illinois.
¶ 7 On November 27, 2012, defendant was taken into custody. Defendant was released on bond later that day. On the bond sheet, defendant listed her address as 8238 Woodland Drive, Apartment B, Darien, Illinois. The court sent a subsequent notice of a court date to the 8238 Woodland Drive address.
¶ 8 On February 27, 2013, defendant filed a speedy trial demand, and the case was set for trial.
¶ 9 Prior to trial, defendant filed a motion to dismiss alleging a violation of her constitutional right to a speedy trial. At the hearing, defendant testified that she had lived at 8238 Woodland Drive since January 28, 2011. Defendant identified defense exhibit one as the form that she sent
to the Illinois Secretary of State to change the address information on her driver's license. The form indicated that defendant was changing her address to 8238 Woodland Drive. Defendant also testified that she gave her address to the victim, and the victim dropped her children off at defendant's apartment.
¶ 10 On July 14, 2011, defendant went to the Romeoville police department and spoke with an officer. Defendant gave her contact information, including her correct address, to the officer. At the time, defendant was not notified of the theft charge.
¶ 11 In November 2012, defendant was stopped by the Westmont police on the outstanding warrant and placed under arrest. Defendant was "very scared and stressed" and was surprised to learn that there was a warrant for her arrest.
¶ 12 On cross-examination, defendant said that she had never told the police that her address was 8235 Woodland Drive. Defendant also had not received any documents or correspondence from the court at her home address.
¶ 13 Defense counsel initially argued that it appeared that the State never attempted to serve the summons. However, during the argument the State provided defense counsel with a copy of the service which stated 8235 Woodland Drive did not exist. The State acknowledged that it was initially working off of an incorrect address that it had received from the police, but argued that it had made efforts to remedy the mistake before the November 4, 2011, warrant was issued. After arguments, the trial court denied defendant's motion.
¶ 14 The parties agreed to proceed by way of a stipulated bench trial. The parties stipulated to the police report that indicated that on June 1, 2011, the victim hired defendant to care for her children from 8 a.m. to 6 p.m. Monday through Friday. During this period, the victim noticed items missing from her home, including a gift card that she left on the kitchen counter. The
victim later learned that the $200 gift card had been activated and $41.13 in charges had been applied to the card.
¶ 15 On July 8, 2011, the officer who took the victim's report contacted defendant by telephone. Defendant denied any involvement in the theft and using the victim's gift card. On July 14, 2011, the victim's mother-in-law showed the police text messages that she had received from defendant. In the messages, defendant apologized and offered to pay for the charges on the gift card. On the same date, defendant spoke with a police officer at the Romeoville police department. Defendant told the officer that she was babysitting the victim's children and took two gift cards off the victim's counter. On July 20, 2011, the officer reviewed the case with an assistant State's Attorney who approved a misdemeanor theft charge.
¶ 16 In a written statement to the police, defendant acknowledged that she took a Best Buy and Vanilla gift card from the victim. Defendant charged $41.13 on the Vanilla gift card and $43.27 on the Best Buy gift card.
¶ 17 The trial court found defendant guilty and sentenced her to a 12-month term of court supervision. Defendant appeals.
¶ 18 ANALYSIS
¶ 19 Defendant argues that she was denied her constitutional right to a speedy trial because her trial was held more than 22 months after she was charged, and 16 months of the delay was due to the State's negligence or lack of diligence in apprehending her. Because defendant did not suffer prejudice as a result of the State's delay, we find the trial court properly denied defendant's motion to dismiss.
¶ 20 A defendant has both a constitutional and a statutory right to a speedy trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103-5(a) (West 2012). Here,
defendant only argues that her constitutional right to a speedy trial was violated. In contrast to the statutory right, a constitutional speedy trial violation is not based on an exact number of days of delay. People v. Lacy, 2013 IL 113216, ¶ 20. Instead, to determine whether a defendant's constitutional right to a speedy trial has been violated, we employ a balancing approach that considers four factors, which include: (1) the length of the delay; (2) the reasons for the delay; (3) defendant's assertion of the speedy trial right; and (4) prejudice caused to defendant by the delay. Id.; Barker v. Wingo, 407 U.S. 514, 530 (1972).
¶ 21 The parties in the instant case do not dispute that the length of the delay, which was more than one year, raised the presumption of prejudice and triggered the Barker enquiry. See People v. Crane, 195 Ill. 2d 42, 52-53 (2001) (courts have recognized a delay approaching one year to be presumptively prejudicial). However, the parties dispute the remaining three Barker factors.
¶ 22 Turning to the reason for the delay, we note that the State bears the burden of providing justification for any delay that occurred. Crane, 195 Ill. 2d at 53. Explanations for a delay are assigned different weights. Id. Evidence that the State intentionally delayed prosecution to gain some tactical advantage will weigh heavily against the State while neutral reasons, such as a crowded court docket, faulty police procedure, negligence or incompetence will weigh less heavily. Id.
¶ 23 In the instant case, the 16-month delay was due to the State's failure to serve the summons on defendant. In July 2011, defendant spoke with a Romeoville police officer about the incident at issue and provided the officer with her correct address. The officer then consulted with an assistant State's Attorney about the theft charge and a summons was issued with an erroneous address. The record indicates that the summons was returned undelivered noting that the 8235 Woodland Drive did not exist. Nevertheless, the subsequent arrest warrant and court
notices were sent to this erroneous address. As a result, the State was aware in 2011 that defendant's address was erroneous. The record further establishes that the State could have determined defendant's correct address by reviewing defendant's driver's license information or asking the victim, who had been to defendant's home. Therefore, the State's lack of due diligence in apprehending defendant weighs against the State for speedy trial purposes.
¶ 24 Next, we consider defendant's assertion of her right to a speedy trial. After learning of the charges in November 2012, defendant filed a speedy trial demand. Therefore, defendant asserted her right as soon as it was practically possible. Assertion of her right at an earlier point in the proceedings would have been illogical given defendant's ignorance of the charge. Defendant's invocation of her speedy trial right, therefore, weighs in her favor.
¶ 25 Finally, we must consider whether defendant suffered prejudice as a result of the State's delay in bringing her to trial. Prejudice "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect." Barker, 407 U.S. at 532. These interests include: the prevention of oppressive pretrial incarceration, the minimization of defendant's anxiety and concern about the pending charge, and the limitation of the possibility that the defense will be impaired by the delay. Id.
¶ 26 Here, defendant has not established that prejudice resulted from the delay. Defendant was not in custody during the 16-month delay and was unaware of the charges until she was arrested in November 2012. Defendant alleges that the surprise arrest caused anxiety; however, the duration of this anxiety was very short and likely would have occurred to a similar extent if she were arrested in 2011. Additionally, the delay had minimal impact on defendant's preparation of a defense because defendant admitted the theft in a July 14, 2011, written statement to the police, and the text message evidence established that defendant offered to repay
the victim for the loss resulting from the theft.
¶ 27 Balancing the four Barker factors, we conclude that the 16-month delay in bringing defendant to trial was the result of the State's failure to exercise due diligence in locating defendant; however, the reason for the delay and defendant's assertion of her right to a speedy trial are offset by the overall lack of prejudice to defendant. Therefore, we affirm defendant's conviction and sentence.
¶ 28 CONCLUSION
¶ 29 The judgment of the circuit court of Will County is affirmed.
¶ 30 Affirmed.